CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

From A to Zeal: What it takes to win your California Trust or Will lawsuit

Posted in Litigation

By: Keith Davidson

Lawyers are duty-bound to provide “zealous” advocacy for their clients.  The term “zealous” means to show zeal, and zeal means “great energy or enthusiasm in pursuit of a cause or an objective.”  I really like that definition because it captures the heart of what it takes to be a good lawyer—energy and enthusiasm.  And why not invest energy and enthusiasm into every client’s case, it makes the practice of law more interesting, meaningful and fulfilling.  Not to mention it coincides with what most clients want from their lawyer: to kick ass (putting it bluntly).

So why do so many lawyers lack zeal?  Well the cost of being zealous is putting yourself on the line.  To be a zealous advocate means having to test yourself time and again, on every case for every client, and then holding yourself accountable for every case and for every client.  In other words, it takes hard work and a good deal of courage to step into the middle of someone else’s problem and take it on as your own (especially with energy and enthusiasm).

The biggest fear lawyers face: losing.  That is not unique to lawyers, by the way.  We all fear losing.  Our American individual bravado praises the winner.  And when you win, you have done everything right—no one can question your abilities.  When you lose, however, you did something very wrong and then everyone questions your abilities.

Of course, winning or losing is of outside our control in the court system.  I have seen good cases lose and bad cases win and everything in between.  In a nutshell, our court system is a bit of a crap shoot.  There is so much out of your control heading into a lawsuit.  You cannot control what the opposing side does, the testimony of witnesses or documents (or the lack thereof), the ruling of judges, the decisions of juries, etc.  There is only one thing in your control: being zealous.  The energy and enthusiasm you put into a case can reap rewards down the road.

Don’t get me wrong, even zealous advocates can lose.  But zealous advocacy increases substantially the chances of either a generous settlement or a victorious trial.  Of course, zealous advocacy comes at a cost.  It takes time to invest energy and enthusiasm into any case, and time is money.  So you can’t, on the one hand, demand a thorough and zealous advocate, and then on the other hand complain about the cost.  The price of fighting for justice and fairness is risking injustice and unfairness.  Nothings guaranteed in this world.

But even without guarantees, it never ceases to amaze me where a good amount of energy and enthusiasm will take you.  So put everything you have into your legal matter, if you really care to prevail.  It is your best chance at achieving a just result.

 

What’s the Deal with Your California Trustee?

Posted in Trust Administration, Trustee Breach of Trust, Trustee Removal, Videos

It can be confusing, and a little worrisome, to be kept in the dark by your Trustee.  Time to find out what’s going on.  In this video, Keith Davidson discusses how to find out what your Trustee is up to.

For our email subscribers, please click on the title link to watch this video on our blog.

How Long Will it Last? A California Trust and Will Contest Can Take Some Time…

Posted in Litigation, Videos

If you are not familiar with the Court system in California, you may be surprised how long a case can last in our Court system.  In this video, Stewart R. Albertson describes the length of time your lawsuit can take in Court in regards to a California trust and will contest.

For our email subscribers, please click on the title link to watch this video on our blog.

Whatever Happened to “You Broke It, You Buy It”? Why California Trust law won’t give you no satisfaction…

Posted in Trustees & Beneficiaries

It can be frustrating dealing with a bad trustee.  You may lose sleep, feel extreme pressure and stress, and have to pay a price financially to fight for your rights as a beneficiary.  And if a Trustee mismanages Trust assets, fails to follow the Trust terms, or engages in conflicts of interests by purchasing Trust assets at below-market value, you may find yourself out a substantial amount of money.

Given all you may be going through, can you hold your Trustee liable, and force him to pay damages, for all the “pain and suffering” you are experiencing?  The answer may surprise you…okay the answer is “no”, are you surprised?  Well you should be because it is a bit surprising to think a Trustee can run rampant with your Trust, and then not be held to the same standard of damages as befalls a typical defendant in personal injury case—such as a fender bender.

In fact, the Trustee’s liability is mainly focused at making the Trust whole—putting the assets back, with interest.  In other words, repair the damage to the Trust assets, but ignore any effect those actions had on the beneficiaries personally.

California Probate Code Section 16420 sets out the remedies for a breach of trust, which include things like:

  • Compel a Trustee to perform his duties
  • Enjoin a Trustee from committing a breach
  • Compel a Trustee to redress a beach of trust by payment of money or otherwise
  • To appint a receiver or temporary trustee to manage the trust
  • Remove the trustee

And Section 16440 of the Probate Code provides the measure of liability, which means the amount of damages to be imposed, such as:

  • Any loss of depreciation in value of the trust estate resulting from the breach of trust, with interest
  • Any profit made by the trustee through the breach of trust, with interest
  • Any profit that would have accrued to the trust estate if the loss of profit is the result of the breach of trust.

What do each of the above measure of damages have in common?  They focus on the Trust assets and making them whole, no mention of the beneficiaries anywhere to be found.

Now here’s the scary part, Section 16440(b) says that the Court has the discretion to let the Trustee off the hook with no damages at all if the Court determines that it would be fair to do so and “the Trustee has acted reasonably and in good faith under the circumstances as known to the trustee….”  Wait, what???  So what is “reasonable and in good faith under the circumstances?”  That all depends, of course, on the facts, the trust terms, the assets, and (most importantly) the judge assigned to your case.

In my experience, most Court’s are not going to let a Trustee off the hook where he or she has caused damage to Trust assets.  But Section 16440(b) provides a big loop hole that the Court can apply if you do not frame your case correctly.

More than that, you can forget your “pain and suffering” damages.  The same is true if a Trustee threatens to breach the trust terms, but never actually does so.  There is no breach of trust in that case, so there can be no damages as against the Trustee, even though the threat of breach may cause severe stress.

When it comes to Trusts, the law looks at the Trust assets to determine what must be paid back by the Trustee if there is a breach of trust.  The law has no concern, and gives no remedy, to the individual beneficiaries.  In other words, the law will make the Trust whole, but won’t make you whole—your pain and suffering is on your dime.

Not fair, I would say, but there you have it.  A big dose of tough love, brought to you by the California Probate Code.

Related:

http://www.aldavlaw.com/practice-areas/litigation/estate-and-probate-litigation/

Don’t I Need to Know? Must your parents tell you about California Trust changes?

Posted in Trust Amendment & Revocation, Trust Creation, Videos

It can be surprising to learn that a parent made a major Trust revision and never told you about it.  In this video, Keith A. Davidson discusses whether your parents have a duty to tell you about Trust changes.

For our email subscribers, please click on the title link to watch this video on our blog.

California’s Catastrophic Court Failure: Why your Trust and Will lawsuit is stuck in legal purgatory!

Posted in Litigation

Wonder why your Trust or Will lawsuit is stuck in court?  This interactive map from the California Bar may shed some light on the reason:

That’s 83 courtrooms lost in Los Angeles County alone.  A total of 53 courthouses and 204 courtrooms no longer operating throughout California.  And that is at a time when we needed more courtrooms due to substantial population growth, not less.

Worse yet, specialty courtrooms, like probate, are getting hit particularly hard as matters are consolidated into a single courthouse or even a single judge to be heard.  This causes what used to be a long and painfully slow process to be much longer and more painfully slow.

There is no sugar coating this crisis in our court system.  There must be better efforts made to fund our access to justice.  Most people may not think much about the court system, until you need help with your legal problem.  And if you have a legal issue that must be taken to court, you want the court to be available to you to resolve your legal matter in as little time as possible.

But with 204 courtrooms closing their doors, access to justice has gotten far worse in California.  How could the most populous state in our nation be suffering such a catastrophic court failure?  Ask the legislature, perhaps they have an idea of why basic access to justice is so hard to come by.  Without the proper financial support, our legal crisis will continue.  And, as William E. Gladstone famously said, “Justice delayed is justice denied.”  Time to stop delaying access to proper justice in our court system.

When California Trust No-Contest Clauses Apply…And When They Don’t

Posted in Litigation, Videos

There is much confusion regarding the use, and misuse, of no-contest clauses.  No-contest clauses rarely apply, and they never apply to a beneficiary who questions the actions and management of the Trust by the Trustee.  In this video,  attorney Keith Davidson describes when no-contest clauses do not apply.

For our email subscribers, please click on the title link to watch this video on our blog.

Trustee Surcharge: Holding Trustee’s Liable for Bad Acts

Posted in Trustee Breach of Trust, Videos

 

 

In California, Trustee’s have a host of duties and obligations they must abide by.  When a Trustee breaches his duty as Trustee, he is liable for money damages equal to the harm he causes.  This is called a Trustee surcharge.  In this video, Stewart R. Albertson discusses Trustee surcharge.

For our email subscribers, please click on the title link to watch this video on our blog.

The Most Important Question for Your California Trust and Will Lawsuit

Posted in Litigation, Videos

California’s Form Interrogatory 15.1 is probably the most important question you will ever ask in your Trust or Will lawsuit.  Why?  Because it requires the opposing party to tell you all facts, witnesses and documents they have to oppose your Petition in Court.  In this video, Stewart Albertson describes Form Rog 15.1 and why it is such an effective question.

For our email subscribers, please click on the title link to watch this video on our blog.

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